Residential telephone lines and the telephone consumer protection act
- Peter Schneider
- Jan 6
- 8 min read
Updated: Apr 8
The TCPA 47 U.S. Code § 227 and the TCPA's implementing regulations 47 CFR § 64.1200 use the terms "residential line" and "residential telephone line" and "residential telephone subscriber". For example, § 64.1200(c) says "No person or entity shall initiate any telephone solicitation to: (2) A residential telephone subscriber who has registered his or her telephone number on the national do-not-call registry of persons . . ". This regulation was implemented under § 227(c), so under § 227(c)(5) anyone who has received "more than one telephone call within any 12-month period by or on behalf of the same entity" in violation of § 64.1200(c)(2) likely could pursue a TCPA lawsuit.
For a idea so important to many TCPA claims, the Telephone Consumer Protection act never defines a residential line or a residential subscriber. Some courts have taken a we-know-one-when-we-see-it-but-we-can't-define-it approach but for those lucky enough to live in the ninth circuit, that court has done what I think is the best job so far. In Chennette v. Porch.com, 50 F.4th 1217, (9th Cir. 2022), the court was faced with a case that ultimately resolved a consumer friendly holdings.
The case originated in Idaho. The defendants had "scraped websites such as Yelp.com, YellowPages.com, and BBB.org for contact information of over ten million home improvement contractors" many of whom used their phones for personal and business use and had registered them on the FTC's National Do Not Call (NDNC) registry. The defendants were selling potential customers (leads) to those contractors.
The plaintiffs sued for § 227(c)/§ 64.1200(c)(2) violations (and § 227(b)) and the defendants moved to dismiss arguing that because the phone numbers had business use, they could not be residential lines. The district court did a short analysis and essentially concluded that any business use of a telephone number negated it from being a residential line and even dismissed the plaintiffs' § 227(b) claims under the guise that the plaintiffs weren't covered by the TCPA's zone of interest at all.
The plaintiffs appealed and the ninth circuit reversed.
Defendants argue that plaintiffs lack Article III standing because they have solicited business inquiries from potential customers and therefore have not suffered a concrete and particularized injury in receiving solicitations from defendants. We disagree.
In terms of the TCPA's zone of interest, the ninth circuit recognized that the plaintiffs, business use or no, hadn't consented to the defendants' phone calls, and hadn't posted their phone numbers to attract calls from the defendants. The plaintiffs were just as annoyed by unwanted calls as anyone else.
The residential phone line analysis took a little more effort.
defendants argue that because plaintiffs use their cell phones both for personal calls and for calls associated with their home improvement businesses, they do not qualify as residential subscribers . . . The disputed question is whether a cell phone that is used for both business and personal purposes can be a "residential" phone within the meaning of § 227(c). In the 2003 TCPA Order, the FCC concluded that a cell phone registered on the do-not-call registry is presumptively a residential phone
The ninth circuit pointed out the FCC had been asked to rule that any business use of a telephone number made it ineligible to be registered on the NDNC list and declined to do so, and the FCC presumed any number registered on the NDNC list was presumed residential unless a review of a specific number's use rebutted the presumption.
This is the view the ninth circuit adopted - NDNC registered numbers are presumed residential which can be overcome by "showing that plaintiffs use their cell phones to such an extent and in such a manner that the presumption is rebutted" using a five factor analysis:
(1) how plaintiffs hold their phone numbers out to the public;
(2) whether plaintiffs' phones are registered with the telephone company as residential or business lines;
(3) how much plaintiffs use their phones for business or employment;
(4) who pays for the phone bills; and
(5) other factors bearing on how a reasonable observer would view the phone line.
These factors will make it difficult for most defendants to argue that the typical phone number use case in the ninth circuit is not residential and protected by the TCPA. The Chennette court did not give weights to the different factors but likely no single factor is determinative. However I am not sure how 2020's Barrett v. Vivint, Inc., Case No. 2:19-cv-00568-DBB-CMR, (D. Utah May. 20, 2020) would play out if appealed:
Defendants argue that Plaintiffs lack standing because they are "professional plaintiffs" with numerous phone lines—allegedly more than twenty-five between them—and a history of litigating TCPA cases for economic gain.
But you can read the briefing and decide for yourself.
Chennette is already making the rounds: “[T]he presumption is if a cell phone subscriber registers the number, it is “residential.”” Dawson v. Porch.Com, 2:20-cv-00604-RSL, 9 (W.D. Wash. Nov. 13, 2024) and in Mantha v. Quotewizard.Com, LLC, No. 19-12235-LTS, 2024 U.S. Dist. LEXIS 152987 (D. Mass.):
QuoteWizard encourages the Court to find essentially that a phone number must fit into a binary of either a residential or business purpose. See, e.g., Doc. No. 264 at 11 (arguing that “the complete absence of any evidence of ‘residential’ use of the cell phone” shows that Mantha is not a residential telephone subscriber). The text of the statute, however, does not say a residential telephone has only or exclusively the qualities of a residential telephone to the exclusion of any other purpose. As the Court has already described, the term “residential telephone subscriber” is a functional term in comparison to other, more technical terms, and therefore encompasses those telephone services fitting the ordinary meaning of that term. Congress attached to the phrase no words of limitation or exclusivity. The Court considers the ordinary meaning of the term “residential telephone subscriber” at the time of enactment by orienting to 1991 when Congress passed the TCPA. See Bostock v. Clayton Cty, 140 S. Ct. 1731, 1738 (2020) (Gorsuch, J.) (describing that the Supreme Court “normally interprets a statute in accord with the ordinary public meaning of its terms at the time of its enactment”). Indeed, no doubt Congress was well aware in 1991 that many residential telephone subscribers then had one telephone line in their homes that they used to make and receive work or business calls at home at night or weekends. Even if that use far exceeded the “personal” or “residential” use of the phone, the term “residential telephone subscriber” encompassed those phones notwithstanding any business or work use because the purpose of the phone was residential. Nothing in the TCPA supports the conclusion that such business or work use divested those phones of the protection of § 227(c). The text of the statute confirms this point. It does not limit the protection to a certain type of use, nor does it limit the protection to phones that are exclusively or only residential in character or to those phones whose use is predominately residential. On the other hand, a person cannot qualify as a “residential telephone subscriber” for a phone that an employer owns, supplies, and funds under the employer’s own account because that phone lacks the required functional qualifications. These examples demonstrate that although a phone’s use can be a relevant factor in the mix, it is generally neither dispositive nor the lynchpin of the analysis.7 Rather the inquiry to determine whether a phone number qualifies as a “residential telephone subscriber” focuses on whether the subscriber has and uses the phone for residential purposes, regardless of if the subscriber also uses the phone for other purposes.
Later, in the electronic order of docket 385, the Mantha court denied QuoteWizard's request to conduct discovery on the plaintiffs' business use of their phones, citing:
Interrogatory No. 1 asks whether the class member “ever made or received calls, texts, appbased messages (e.g., Teams, Discord, Slack), or emails, or attended virtual meetings (e.g., Zoom, Teams), on [their] cellular telephone related to [their] occupation or business.” As the Court has explained previously, mere isolated use of a residential phone for business, e.g. once receiving a business call, does not transform the phone’s status to one that is non-residential. See Doc. No. 269 [I think the court meant 268]; see also Chennette v. Porch.Com, Inc., 50 F.4th 1217, 1224 (9th Cir. 2022) (“[W]e agree with the view of the majority of the district courts and conclude that a presumptively residential cell phone can be residential even when used for both personal and business purposes.”). For all these reasons, and those cited in the Opposition, the Motion to Reopen (#380) is DENIED.
The Mantha docket 268 order had another gem in the fight against unwanted telephone calls, footnote 12:
QuoteWizard argues exclusively that Mantha failed to meet his burden to show he “used his cell phone for residential purposes.” (arguing that the relevant issue is “use” of the cellular phone and discussing evidence regarding “use of Mantha’s cell phone”). For reasons described previously, use, although relevant, is ordinarily neither dispositive nor the lynchpin of this analysis. As long as a phone number meets the functional attributes of a “residential telephone subscriber,” it qualifies as one. Second, there is the fairly obvious question in the present era of whether a cellular phone with both residential and non-residential uses is entitled to the TCPA’s DNC protections. QuoteWizard has made no such argument in its Objection so it is waived. (QuoteWizard argues there is a “complete absence of any evidence of ‘residential’ use of the cell phone,” and electing not to engage in an analysis of whether a phone with mixed uses can be protected under the TCPA’s DNC protections). In any event, the Court’s construction of the statute resolves the question. A telephone phone number with functional characteristics qualifying it as a “residential telephone subscriber” phone so qualifies even if that status is not exclusive, i.e., even if the phone has other characteristics such as serving a personal communication device for reaching the subscriber wherever they are located.
Mantha v QuoteWizard is a good case on residential phone numbers for many TCPA plaintiffs because Mr. Mantha is a person living in the real world - he has a cell phone he uses for every day living, and some for "work" or "business". How many people living in the real world today don't use their cell phone as least occasionally for work?
If a telemarketer or judge is coming after you, hit this point hard:
The legal test Congress framed was not one of use, but one of whether the telephone had the non-exclusive qualities sufficiently rendering it as a “residential telephone subscriber.” Drawing all reasonable inferences in QuoteWizard’s favor, the business or work use of this phone does not create a genuine issue of material fact as to the material issues or strip the telephone of the attributes that qualify it a residential telephone subscriber. Cf. Mattson, 2019 WL 7630856, at *6 (explaining that in the reverse scenario, plaintiff’s “use of the subject number for personal calls does not automatically transform it into a residential line for purposes of the TCPA” when the facts showed that it was a business phone).
The Mattson v. Quicken Loans Inc., No. 3:18-CV-00989-YY, 2019 WL 7630856, at *5 (D. Or. Nov. 7, 2019) opinion is here, and is a good argument. If personal calls on a business line doesn't transform it into residential phone line, why do business calls on a personal line transform it? Mattson’s use of the subject number for personal calls does not automatically transform it into a residential line for purposes of the TCPA.
Would you like a free case review? Do you have a question or a telemarketing, debt collection, or bankruptcy case that would make a great blog article? We might even review your pro-se complaint or motion in a blog post. Email peter@nwdebtresolution.com and/or nathen@nwdebtresolution.com and we may answer it for everyone!
Are telemarketers harassing you in Washington, Oregon, or Montana? My Washington State TCPA plaintiff law practice can help, just give us a call at 206-800-6000 or email peter@nwdebtresolution.com.
The thoughts, opinions and musings of this blog are those of Peter Schneider, a consumer advocate and Washington State plaintiff's TCPA attorney at Northwest Debt Resolution, LLC. They are just that, his thoughts, opinions and musings and should be treated as such. They are not legal advice. If you are looking to file a lawsuit for TCPA violations and unwanted calls please contact me for a consultation.
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